Chapter 5 - Statutory Minimum Factors
Under INA 212(a)(4), officers are required to consider specific minimum factors in determining whether an applicant seeking admission to the United States or seeking to adjust status to that of lawful permanent resident is likely at any time to become a public charge. These statutory minimum factors include the alien’s:
- Age;
- Health;
- Family status;
- Assets, resources, and financial status; and
- Education and skills.[1]
This chapter discusses the statutory minimum factors. Subsequent chapters discuss the Affidavit of Support Under Section 213A of the INA and consideration of current or past receipt of public cash assistance for income maintenance or long-term institutionalization at government expense.[2]
A. Age
USCIS must consider an alien’s age in a public charge inadmissibility determination.[3] The applicant indicates their age on the Application to Register Permanent Residence or Adjust Status (Form I-485).
In some circumstances, such as in the case of children, an applicant’s age may on its face suggest that they are at present unable to earn a living through employment. USCIS considers the applicant’s household’s income, assets, and liabilities, however, not just those of the applicant.
USCIS considers an applicant’s age in the totality of the alien’s circumstances, as part of a prospective determination.[4] Furthermore, USCIS considers age in combination with the other factors, and examines the applicant’s age in relation to its possible impact on the other factors (for example, health or assets, resources, and financial status).
B. Health
USCIS must consider an alien’s health in a public charge inadmissibility determination.[5]
1. Report of Immigration Medical Examination and Vaccination Record
In considering an alien’s health in a public charge inadmissibility determination, USCIS generally defers to the medical information provided by a civil surgeon on the Report of Immigration Medical Examination and Vaccination Record (Form I-693) or by a panel physician on the following Department of State forms: Medical Examination for Immigrant or Refugee Applicant (1991 TB Technical Instructions) (Form DS-2053), the Medical Examination for Immigrant or Refugee Applicant (2007 TB Technical Instructions) (Form DS-2054), or the Electronic Medical Examination for Visa Applicant (DS-7794), and related worksheets.[6] Officers should not make health diagnoses.
Such information includes diagnoses of any Class A[7] or Class B medical conditions diagnosed by the civil surgeon or panel physician. Class A conditions are medical conditions listed in INA 212(a)(1)(A) that render a person inadmissible and ineligible for a visa or adjustment of status.
Class B medical conditions include any “physical or mental abnormality, disease, or disability serious in degree or permanent in nature amounting to a substantial departure from normal well-being,” in which case the civil surgeon or panel physician must also document “the nature and extent of the abnormality; the degree to which the alien is incapable of normal physical activity; and the extent to which the condition is remediable . . . [as well as] the likelihood, that because of the condition, the applicant will require extensive medical care or institutionalization.”[8]
USCIS may request additional information regarding an applicant’s health if the information provided in the report of medical examination is incomplete.[9]
2. Relationship Between Health and Disability
INA 212(a)(4)(B)(i) requires USCIS to consider an alien’s health when making a public charge inadmissibility determination, which may include consideration of any disabilities, as defined by Section 504 of the Rehabilitation Act, identified in the report of medical examination.[10] However, USCIS will not find an applicant inadmissible on the public charge ground solely based on an applicant’s disability.
As noted previously, no one factor (other than the lack of a sufficient Affidavit of Support Under Section 213A of the INA when required) will lead to a public charge inadmissibility finding. Disability alone is not a sufficient basis to determine whether an alien is likely at any time to become primarily dependent on the government for subsistence and therefore inadmissible under INA 212(a)(4).[11]
Additionally, many disabilities do not impact a person’s health, prevent a person from working, or require extensive medical care or institutionalization. In fact, the vast majority of people with disabilities do not use institutional care.[12]
Therefore, USCIS does not presume that an alien having a disability in and of itself means that the alien is in poor health or is likely at any time to become primarily dependent on the government for subsistence. Likewise, USCIS does not presume that the alien’s disability in and of itself negatively impacts any of the other statutory minimum factors.
C. Family Status
USCIS must consider an alien’s family status, as evidenced by the applicant’s household size, as household is defined in 8 CFR 212.21(f), in a public charge inadmissibility determination.[13]
The applicant indicates their household size on Form I-485. A household includes:[14]
- The alien;
- The alien’s spouse, if physically residing with the alien;
- The alien’s parents, if physically residing with the alien;
- The alien’s unmarried siblings under 21 years of age, if physically residing with the alien;
- The alien’s children,[15] if physically residing with the alien;
- Any other individuals who are listed as dependents on the alien’s federal income tax return;[16] and
- Any other individuals who list the alien as a dependent on their federal income tax return.
As seen in this list, an applicant’s household includes certain individuals living with the alien (who may or may not contribute financially to the household) as well as certain relatives and close relations who may contribute financially to the alien’s household while not residing with the alien. Financial contributions from these non-cohabitating household members are included in the consideration of the applicant’s assets, resources, and financial status factor, as described below.
D. Assets, Resources, and Financial Status
USCIS must consider an alien’s assets, resources, and financial status in a public charge inadmissibility determination.[17] In considering an alien’s assets, resources, and financial status, USCIS examines the alien’s household’s[18] income, assets, and liabilities.[19]
The applicant indicates their household’s income, assets, and liabilities on Form I-485. Applicants are not required to submit any specific supporting evidence related to their household’s income, assets, and liabilities. USCIS may request additional evidence on a case-by-case basis if more information is needed to make a public charge inadmissibility determination.
Income
Applicants indicate their household’s annual income, which may include income provided to the household from sources who are not members of the household, such as alimony or child support.[20] A household’s annual income excludes any income from Supplemental Security Income (SSI); Temporary Assistance for Needy Families (TANF); or state, tribal, territorial, or local cash benefit programs for income maintenance (often called “General Assistance” in the state context, but which also exist under other names).[21] Similarly, the household’s income excludes any income from illegal activities or sources such as proceeds from illegal gambling or drug sales.[22]
USCIS does not limit the consideration of income only to income that appears on federal income tax forms, and considers all evidence of income from lawful sources. Examples of income that may not appear on income tax forms include child support and alimony. Some households may also have regular income, such as Social Security income, that does not reach the minimum required threshold for filing federal income taxes.[23] USCIS also considers any evidence an alien submits pertaining to expected future income.
In some instances, the household’s income may include income that has resulted from unauthorized employment. Whether an alien or a member of the alien’s household engaged in unlawful employment, and any immigration consequences flowing from such unauthorized employment, is a separate determination from the public charge inadmissibility determination.[24]
Therefore, this income is not excluded from the household’s income calculation, and USCIS considers any income derived from employment, regardless of whether the household members had employment authorization, as long as the income is not derived from illegal activities or sources, such as illegal gambling.
Assets and Liabilities
When considering the applicant’s financial status, USCIS also considers the alien’s household’s assets and resources, for example, investments or home equity, excluding any assets from illegal activities or sources, such as proceeds from illegal gambling or drug sales. USCIS also considers the alien’s household’s liabilities, both secured and unsecured, such as loans, alimony, and child support payments. By taking into account an alien’s household’s liabilities, USCIS is able to examine the alien’s overall financial status in the totality of the circumstances.
USCIS considers financial obligations and debts alongside assets and resources to avoid artificially inflating the calculation of an alien’s financial status, as these obligations and debts would decrease the resources that are actually accessible to the alien. However, if an alien has financial obligations and debts, this does not necessarily indicate that the alien is inadmissible under the public charge ground, and USCIS considers this factor in the totality of the circumstances.
E. Education and Skills
USCIS must consider an alien’s education and skills in a public charge inadmissibility determination.[25] In considering an alien’s education and skills in this determination, USCIS considers any degrees, certifications, licenses, educational certificates, and skills obtained through work experience or educational programs.[26] The applicant indicates their education and skills on Form I-485.
Skills obtained through work experience (including volunteer and unpaid opportunities) include but are not limited to the alien’s workforce skills, training, licenses for specific occupations or professions, language skills, and certificates documenting mastery or apprenticeships in skilled trades or professions. Educational certificates are issued by an educational institution (or a training provider) and certify that an occupation specific program of study was completed.
While some aliens may establish their education and skills through evidence of completed degrees, the statutory education and skills factor does not specify that only formal education is acceptable.
USCIS may consider other evidence of attained knowledge and skills, including those skills earned through certifications and licensure, as well as skills obtained through on-the-job training or overall work experience. This consideration allows USCIS to acknowledge those aliens who hold occupations that do not require official licenses or certifications but whose occupations impart skills that otherwise affect the alien’s overall employability.
Footnotes
[^ 1] See INA 212(a)(4)(B)(i).
[^ 2] See Chapter 6, Affidavit of Support Under Section 213A of the INA [8 USCIS-PM G.6]. See Chapter 7, Consideration of Current and/or Past Receipt of Public Cash Assistance for Income Maintenance or Long-term Institutionalization at Government Expense [8 USCIS-PM G.7].
[^ 3] See 8 CFR 212.22(a)(1)(i).
[^ 4] For more information about the totality of the circumstances determination, see Chapter 4, Prospective Determination Based on the Totality of the Circumstances [8 USCIS-PM G.4]. For more information about the totality of circumstances specifically relating to children, see Chapter 9, Adjudicating Public Charge Inadmissibility for Adjustment of Status Applications, Section A, Evidence in the Record, Subsection 3, Other Notable Circumstances Relevant in the Totality of the Circumstances [8 USCIS-PM G.9(A)(3)].
[^ 5] See INA 212(a)(4)(B)(i).
[^ 6] See 8 CFR 212.22(a)(1)(ii). As of October 1, 2013, panel physicians only use DS-2054 or DS-7794. The DS-2053 is no longer used after that date. Applicants for adjustment of status generally submit Form I-693; however, immigrants applying for adjustment of status as a refugee, a derivative of an asylee, or a K or V nonimmigrant visa holder, as well as some Afghan nationals as part of Operation Allies Welcome who have already had a medical examination overseas, may submit a medical examination performed by a panel physician.
[^ 7] See 42 CFR 34.2(d).
[^ 8] See 42 CFR 34.4(b)(2) and 42 CFR 34.4(c)(2). For more information about Class A and Class B conditions, see Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility [8 USCIS-PM B].
[^ 9] See 8 CFR 212.22(a)(1)(ii).
[^ 10] See 8 CFR 212.22(a)(1)(ii).
[^ 11] See 8 CFR 212.22(a)(4).
[^ 12] See 87 FR 55472, 55544 (PDF) (Sept. 9, 2022).
[^ 13] See INA 212(a)(4)(B)(i). See 8 CFR 212.22(a)(1)(iii).
[^ 14] See 8 CFR 212.21(f).
[^ 15] As defined in INA 101(b)(1).
[^ 16] Including a spouse or child as defined in INA 101(b)(1) not physically residing with the alien.
[^ 17] See INA 212(a)(4)(B)(i).
[^ 18] As defined in 8 CFR 212.21(f).
[^ 19] USCIS does not include income derived from the public benefits listed in 8 CFR 212.21(b): Supplemental Security Income (SSI); cash assistance for income maintenance under the Temporary Assistance for Needy Families (TANF); and state, tribal, territorial, or local cash benefit programs for income maintenance, commonly called “General Assistance,” in the income calculation. See 8 CFR 212.22(a)(1)(iv). USCIS also does not include any income or assets derived from illegal activities or sources, such as proceeds from illegal gambling or drug sales. See 8 CFR 212.22(a)(1)(iv).
[^ 20] See 87 FR 55472, 55475 (PDF) (Sept. 9, 2022).
[^ 21] See 8 CFR 212.22(a)(1)(iv).
[^ 22] See 8 CFR 212.22(a)(1)(iv) and 8 CFR 212.21(b).
[^ 23] See the Internal Revenue Service’s (IRS) Who Should File a Tax Return webpage for more information on the minimum taxable income threshold.
[^ 24] See INA 245(c)(2) and INA 245(c)(8). For more information about the unauthorized employment determination, see Volume 7, Adjustment of Status, Part B, 245(a) Adjustment, Chapter 6, Unauthorized Employment (INA 245(c)(2) and INA 245(c)(8)) [7 USCIS-PM B.6].